LAW

Enviros push 'public trust' as trump card over oil and gas influence

Third in a series on the changing landscape of oil and gas law. Click here to read the first story and here to read the second story.

Last Dec. 19 was a gratifying day for John Dernbach. In 162 pages the state's highest court had resurrected a provision in Pennsylvania's Constitution that had long ago faded into obscurity.

The forgotten measure is an environmental rights amendment nestled in Article 1, among core protections of civil rights and due process. The amendment gives people a right to clean air, pure water and conservation of natural resources. It hands environmentalists an opportunity to transform the natural gas debate in Pennsylvania and beyond.

"So often, the environmental conversation is about the power of government to regulate," said Dernbach, who teaches at Widener University and runs the school's Environmental Law Center. "Here the court is saying the more important question is the rights of citizens to be free of government interference with their environmental rights. And that changes the conversation."

In the December decision, known as Robinson Township, the Pennsylvania Supreme Court struck down part of the state's shale oil and gas law, or Act 13, for violating the environmental rights amendment. It reverberated across the environmental community and re-energized debate over what's called the "public trust doctrine."

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Public trust reserves natural resources for the people and puts a duty on government officials to maintain the resources for public benefit. Act 13's provision barring local governments from controlling well locations kept those local leaders from upholding the doctrine, so the court found it unconstitutional.

Though it's still too early to tell, some believe the decision will have a ripple effect in other jurisdictions, pushing governments to a new age of environmental protection. Jordan Yeager, an attorney who represented local governments against the state in the litigation, says the decision "vindicates individual rights."

"The courts did it in such a sweeping analysis and provided such substance to the jurisprudence in the area that it's going to be relied on in a lot of different contexts," he said.

Dernbach has been pressing judges to unearth the doctrine for nearly 15 years. He contends the decision has influenced the thinking of local government advocates in Colorado and other states with shale development.

Indeed, the justices' emphasis on environmental priorities contrasts starkly to the tendency of many state leaders to charge forward on oil and gas production in the name of economic development. Harrisburg lawmakers, for example, have largely rolled out the red carpet for industry since the Marcellus Shale first showed promise around 2008, crafting statewide regulations heavily influenced by natural gas companies.

So the significance of the decision for Pennsylvania is clear: Natural gas development cannot proceed at the expense of the public's right to a clean environment. But will the ruling's impacts reach across state lines? That remains to be seen.

Domino effect?

To public trust expert Mary Wood, the result in Pennsylvania is nothing short of a game changer.

"This is the type of decision that will start the dominoes falling toward environmental protection," said Wood, a law professor at the University of Oregon. "It was so clear as to the duties of the public trustees. It was written in a really thoughtful and deliberate manner."

Wood says the court's analysis was purposely broad in relying not only on Pennsylvania's environmental rights amendment, but on a "common law" notion of public trust. The distinction is important because if the decision rests on federal common law rather than state law, as Wood suggests, courts in other states should conceivably follow suit.

Federal common law -- legal custom established by courts rather than statutes -- has for years protected the public trust, most prominently in a late-1800s U.S. Supreme Court case that struck down Illinois lawmakers' granting of land under Lake Michigan to a private company. The court said the transfer violated the state's duty to hold that land in trust for Illinois residents, and the ruling set the stage for generations of public trust protection.

But the effects of the Illinois case were narrow. In the days since the landmark decision, the doctrine has mostly remained in the confines of navigable waters and wildlife issues.

"People relegated the public trust to some historical footnote," Wood said. "But confining the public trust to navigable waters is absurd in today's modern context because it turns out there are a whole lot of resources that are essential to our survival that have little to do with navigability."

The tide began to turn in 1970 when an influential writing by Michigan environmental law professor Joseph Sax suggested that the public trust could be a broader tool in litigation. Many lawyers are now working to push the doctrine's boundaries, incorporating all natural resources. Wood's pet project, for example, is "atmospheric trust litigation" applying the public trust doctrine to carbon pollution.

The movement has gotten some recent traction on the shale front, too, in "community bills of rights" in towns leery of hydraulic fracturing. Attorneys from the Community Environmental Legal Defense Fund have crisscrossed the country helping local government leaders draft ordinances that establish a public right to a clean environment. Litigation over the provisions is pending in several jurisdictions, but so far, the local measures remain an open question.

Pennsylvania's decision in December has set the strongest standard yet for the public trust doctrine's application to resources affected by oil and gas.

"The public natural resources implicated by the 'optimal' accommodation of industry here are resources essential to life, health, and liberty: surface and ground water, ambient air, and aspects of the natural environment in which the public has an interest," Chief Justice Ronald Castille wrote in the plurality opinion joined by two other justices. A fourth justice joined in the ruling on different grounds.

Not so fast

Still, many believe the public trust analysis in the Pennsylvania case would never happen anywhere else.

"I don't think the Pennsylvania case is going to be tremendously helpful to people who want to use the public trust doctrine in other jurisdictions," said Mark Johnson, a Los Angeles attorney at Alston & Bird who represents oil and gas producers.

Johnson, whose own state is set up for similar local-versus-state-control conflicts, thinks using the doctrine to curb oil and gas development outside Pennsylvania is just wishful thinking by environmentalists.

"In certain circumstances, where a party is opposed to a particular project, they try to essentially argue that the public trust doctrine trumps the administrative agency rules and regulations," he said, "which I think is actually a big stretch and a difficult argument to be successful."

That's because a common law protection typically takes a backseat to statutes and regulations on the books -- which is where the constitutional provisions come in.

Pennsylvania's protections have gone the furthest. The state passed its environmental rights amendment in 1971 following the nationwide rise in environmental regulation and public trust awareness. The deliberate placement of the amendment in the first section of the state constitution elevates the environmental right to the status of the civil and human rights traditionally protected by state governments.

"The environmental amendment is every bit as much constitutional law as any other provision in the state constitution," said Dernbach, the Widener professor. "You have to treat the text seriously."

But in many states, it's not so simple. Though a flurry of states joined Pennsylvania in passing constitutional amendments in the 1970s, most states' provisions are weaker, either powerless without legislative action or limited to issues of water and wildlife.

In fact, until Pennsylvania, the most high-profile public trust cases have dealt with water. In Montana, the state Supreme Court in 1999 considered a state permit for industrial wastewater discharge and found that it violated the people's constitutional right to a clean environment. Similarly, the Hawaii Supreme Court in 2000 reinforced the public trust doctrine by deciding that an agricultural project violated the protection duty.

'An added tool'

Yeager, the Pennsylvania attorney, acknowledges that his state's protections are unique.

"We have an added tool in being able to point to the constitutional text that gives greater weight to the public trust doctrine," he said. "The fact that it's discussed in the depth and with the substance that it was in Robinson Township in a way that's different than other places is in large part a function of the constitutional provision."

But he's adamant that other jurisdictions can use it, too. Efforts are already afoot in Michigan and Colorado. In Michigan, environmental attorneys are challenging state regulators to perform additional environmental review to meet their public trust responsibilities. The attorneys say that even if the doctrine is limited to navigable water issues, it places a duty on government to consider how fracking and horizontal drilling could affect the water.

In Colorado, a would-be ballot measure sought to establish a constitutional environmental right similar to the one in Pennsylvania. The measure was scrapped in a political compromise earlier this month but may resurface in future election cycles (EnergyWire, Aug. 5).

The issues will be watched closely nationwide as environmentalists and neighbors of drilling projects seek to slow the growth of the industry, and state and local governments battle over who has authority to regulate.

Dernbach said he hopes courts in other states see the Robinson Township decision as an example of how they can bring dormant public trust clauses to life.

"What the Pennsylvania case could stand for is to encourage courts to look at ways of interpreting their environmental amendments, taking them seriously," he said. "Those are not liberal propositions."